From CAAFlog
~~~~~~~~~~~~~~~~~~~~
*snip*
So let’s review.
LTC Lakin can probably be found guilty of either Charge II Spec 1 or Spec 2, but not both.
Assuming that the government has sufficient evidence to overcome the ultimate offense doctrine, the maximum confinement for that pair of offenses will be six months. LTC Lakin probably can’t be found guilty of both Spec 3 and Spec 4 of Charge II.
The government will choose to retain a finding of guilty to Spec 4, resulting in another possible 6 months of confinement.
So the max punishment for Charge II and its specs will likely be a dismissal, forfeiture of all pay and allowances, and confinement for 1 year (plus maybe a fine).
As we’ve previously discussed, the government may not be able to prove Charge I.
The charged offense requires that LTC Lakin missed the movement of an aircraft with which he was required in the course of duty to move. To win a conviction, the government would have to prove that LTC Lakin had a duty to be on the particular USAirways flight alleged on the charge sheet. But those in receipt of itineraries including commercial flights are generally authorized to change those flights.
It seems unlikely that a flight from BWI to Charlotte, NC, is the only way LTC Lakin could have gotten from the Washington, DC, area to Fort Campbell, Kentucky.
Now, given the history of the case, it’s certainly possible that some superior authority said to LTC Lakin words to the effect of, “You had better have your rear end on a seat on USAirways flight number 1123 leaving BWI Airport at 0840 hours on 12 April 2010!” (Thanks, Mr. Lowrey!)
If so, he can be found guilty of missing movement. But if he wasn’t given a thou-shalt-not-change-thy-flight order, he probably can’t be found guilty of missing movement and his maximum confinement exposure will be a year. See United States v. Kapple, 40 M.J. 472, 473-74 (C.M.A. 1994).
But let’s say that LTC Lakin did receive such a thou-shalt-not-change order.
What’s his maximum confinement exposure then? That situation is anomalous. Missing movement is really just the means by which LTC Lakin committed the offense that the government really cares about — failing to report to Fort Campbell as ordered. No one really cares that LTC Lakin wasn’t on a particular USAirways flight from BWI to Charlotte.
And yet the spec alleging the means is punishable by four times the maximum punishment of the spec alleging the ultimate offense. Can LTC Lakin be separately convicted and punished for both the means by which he committed the offense and the ultimate offense? Under CAAF’s case law, yes.
CAAF has specifically rejected multiplicity for findings challenges in a means/ultimate offense context. United States v. Teters, 37 M.J. 370 (C.M.A. 1993).
And, in a post-Teters case, CAAF has held that “Congress intended to permit separately punishing the offenses of willful disobedience and missing movement.” United States v. Morrison, 41 M.J. 482, 484 (C.A.A.F. 1995).
That would likely preclude a ruling that Charge I and its spec are multiplicious for either findings or sentencing purposes with Charge II, Spec 3 or 4.
Judge Lind could rule that missing movement and either violation of a lawful order or willful dereliction of duty constituted an unreasonable multiplication of charges under the five Quiroz factors, but probably wouldn’t, especially since a necessary predicate to a finding of guilty for missing movement would be a firm indication to LTC Lakin that he’d better be on that particular flight.
Additionally, it’s apparent that the government didn’t allege both the missing movement and the Article 92 offenses as a cynical means to increase LTC Lakin’s potential confinement; as previously mentioned, had the government been trying to maximize LTC Lakin’s confinement, it would have charged the orders violations under Article 90 rather than under Article 92.
So, if the government can prove missing movement, then LTC Lakin’s maximum possible punishment will likely be a dismissal, confinement for three years, and total forfeiture of pay and allowances.
(I could also see the government making a plausible argument for a fine in this case.)
If the government can’t prove the missing movement, then the maximum possible punishment will be a dismissal, confinement for one year, and total forfeiture of pay and allowances — plus, maybe, a fine.
Why do they bother trying to parse it as if the laws or rules make any difference? Judge Lind can do what she darn well pleases. Period. The point is made. There is no rule of law so let’s just skip the kissing as if that makes it more palatable and get right to the rape.